Tuesday the Montana Supreme Court upheld a lower court decision in a lawsuit filed by a rancher whose land burned in the Ryan Gulch fire in 2000. In 2012 a jury awarded Fred and Joan Weaver $730,000 in a trial over the strategy and tactics that were used on the fire. The Weavers claimed firefighters’ burouts caused them to lose valuable timber and grass in their pastures. The fire burned 17,000 acres near the Clark Fork River along Interstate 90.
The heart of the Weavers’ case was their contention that firefighters who usually fought fire in the flat, wet southeast United States used poor judgement in selecting and implementing an indirect strategy of backfiring or burning out, rather than constructing direct fireline on the edge of the fire. In the process, they argued, more land burned than was necessary, including 900 acres of their ranch.
The State of Montana argued that a legal principle known as the “public duty doctrine” prohibited the recovery of damages for government efforts to contain and suppress a wildland fire. The Supreme Court affirmed the trial court’s decision that the State had not raised the issue in time and declined to consider the argument. The Court determined that the State had not given adequate notice to the landowners that it would be relying on that legal theory. Because the issue was not raised until three weeks before trial, the District Court was within its discretion in ruling that the plaintiffs did not have adequate time to respond.
The Court also rejected the State’s arguments that the plaintiffs had failed to present adequate expert testimony at trial and that the trial court should have moved the trial to a different county.
Rim Fire becomes fourth largest in California history
Our main article about the Rim Fire is updated daily but here are a few recent facts about the fire. On Saturday it continued to grow, adding another 3,000 acres to become at 222,77 acres the fourth largest fire in California history. Winds that shifted to come out of the west over the last two days have blown smoke into downtown Yosemite National Park, into the heavily visited Yosemite Valley. Compare these two photos of the valley; the one above was taken Sunday morning by a web cam, and the photo below we took on a day when the air was much cleaner. The fire is still eight to ten miles away from Yosemite Valley.
The 5,115 personnel assigned to the fire are fighting it by constructing direct fireline along the fire’s edge, and by indirect methods including burning out the fuel ahead of the fire. The smoke has limited the use of air tankers and helicopters for the last two days.
According to the Daily Telegraph, the fire may have been caused by activities at an illegal marijuana farm.
“We don’t know the exact cause,” Todd McNeal, fire chief in Twain Harte, a town that has been in the path of the flames, said on Friday. But he told a community meeting that it was “highly suspect that there might have been some sort of illicit grove, a marijuana-grow-type thing.”
“We know it’s human caused. There was no lightning in the area,” he said.
LA Times article about the Rim Fire
Julie Cart, who with Bettina Boxall wrote a series of Pulitzer Prize winning articles in 2008 about wildfires for the Los Angeles Times, has a new article about the Rim Fire. She mentions how firefighting policy differs between the U.S. Forest Service and the National Park Service, but greatly over-simplifies to the point of distortion the concept of “fire use” fires which are not aggressively and immediately suppressed.
Reuters: how budgets affect fires
Reuters has an article about how federal budgets may be contributing to the occurrence of larger fires by reducing the number of fuel treatment projects and prescribed fires. They have a quote from Jonathan B. Jarvis, the Director of the National Park Service:
Part of the problem, experts and many fire officials say, is that funding has been low for the controlled burns and forest-thinning work that makes it harder for a wildfire to spread.
“We’ve got to invest up front in terms of controlling and managing these fires,” said Jonathan Jarvis, director of the National Park Service from his smoke-filled post in Yosemite National Park. “Just waiting for the big fire and then throwing everything you’ve got at it makes no sense.”
In recent years, Jarvis said, the trend has been to shift money from fire prevention to firefighting.
Montana Supreme Court will decide case about firefighting strategy
The Montana Supreme Court will make a decision by November that could have an effect on how firefighters select a strategy for suppressing a fire. A Montana rancher who said firefighters’ backfires ruined his ranch won a suit against the state of Montana in 2012 which is being appealed to the Supreme Court. A jury awarded Fred and Joan Weaver $730,000 in a trial over the strategy and tactics that were used on the Ryan Gulch fire in 2000 – $150,000 was for the loss of timber, $200,000 for rehabilitation of pasture land, and the balance was for the mental suffering and anguish of seeing their ranch threatened by the fire. About 900 acres of the Weaver’s land burned during the fire.
The heart of the Weavers’ case was their contention that firefighters who usually fought fire in the flat, wet southeast United States used poor judgement in selecting and implementing an indirect strategy of backfiring, rather than constructing direct fireline on the edge of the fire. In the process, they argued, more land burned than was necessary, including 900 acres of their ranch.
Prescott’s Granite Mountain Hotshot crew nearly paid for itself
When the Granite Mountain Hotshots worked on federal fires the terms were established by their contract or agreement with the U.S. Forest Service. The Prescott Fire Department paid the personnel on the crew around $12 an hour according to The Daily Courier, but the department was reimbursed by the federal government at the rate of $39.50 an hour. Below is an excerpt from the article:
In fiscal year 2012, the city estimated that the crew brought in $1,375,191, and had $1,437,444 in operating expenses – for a difference of $62,253.
On June 30 of this year 19 members of the crew were killed on the Yarnell Hill Fire near Prescott, Arizona. A controversy is brewing in Prescott and the state of Arizona about the differences in compensation for the survivors of the seasonal and permanent firefighters on the crew.
It is not unusual for firefighting resources that are contracted to the federal government through local fire departments to be compensated at rates far higher than those at which federal firefighters are paid.
In a meeting with Senator John Thune (R-SD) on Friday, some local property owners criticized the strategy and tactics that the Incident Management Team used while suppressing the White Draw fire, which burned 9,000 acres northeast of Edgemont, South Dakota.
The Edgemont Volunteer Fire Department was the first on the scene, fire chief Paul Nelson told Thune.
Nelson is frustrated with the Forest Service’s handling of the fire in its early stages and its poor communication with local firefighters.
Several local volunteers and landowners believe the fire could have been stopped in the early stages if federal officials would have consulted with them on everything from roads to equipment availability.
The firefight was mismanaged, Ben Reutter said.
“They wouldn’t ask the local guys where the roads were. That’s unacceptable,” Reutter said.
Reutter’s father, 68-year-old Edward Reutter, suffered a heart attack shortly after the fire headed for his property last Friday. He died the same night at a Hot Springs hospital.
“It was the stress,” his daughter-in-law, Becky Reutter, said.
The fire started on the edge of some rough country, volunteer firefighter and rancher Toy Litzel said. “But it could have been fought.”
Forest Service officials were unaware of roads that could have given them better access to the fire and wouldn’t take the advice of the area’s residents, locals said.
“They didn’t listen to us,” Nelson said.
There was also an underlying regret among local residents that four lives were lost in the fire when a C-130 cargo plane from the North Carolina Air National Guard crashed July 1. Two members of the crew survived the crash.
The Forest Service’s lack of regard for the local community was evident when a memorial service for the fallen men was set for 6 a.m. July 5, without notifying local residents, Reutter said.
“A lot of people would have come,” he said.
After visiting with the Edgemont area residents, Thune conferred with fire officials and U.S. Air Force representatives.
Black Hills National Forest Supervisor Craig Bobzien assured Thune that his agency was “tied in with local firefighting resources very well.”
Bobzien said the local resources were used. Firefighters from larger departments were brought in so the local units could go home in case of new fires.
“I hope there wasn’t any sort of misunderstanding there,” Bobzien said. Bobzien assured Thune he would follow up on any concerns.
This is not the first time an Incident Management Team has been criticized for the failure to communicate with locals. For example, in April a Montana landowner was awarded $730,000 after some of their land burned in the 2000 Ryan Gulch wildfire.
Without knowing exactly where, how, and under what burning conditions the locals thought the IMTeam could have stopped the White Draw fire, it is difficult to say they are wrong. However, under the hot, dry, windy conditions while the fire was cranking out thousands of acres a day, no experienced wildland firefighter would have been out in front of it while it was exhibiting extreme fire behavior. And no ranch road, two-track, or Interstate Highway can stop a timber fire pushed by strong winds.
On April 20 Wildfire Today covered the jury verdict following a trial that awarded $730,000 to the owners of a Montana ranch, part of which burned in the Ryan Gulch wildfire in 2000 during a period that saw numerous fires burning across the state. The heart of Fred and Joan Weaver’s case was their contention that firefighters used poor judgement in selecting and implementing an indirect strategy of backfiring, rather than constructing direct fireline on the edge of the fire. In the process, they argued, more land burned than was necessary, including 900 acres of their ranch. The jury decided that of the monetary award, $150,000 was for the loss of timber, $200,000 was for the rehabilitation of pasture land, and $350,000 was to compensate them for the mental suffering and anguish of seeing their ranch threatened by the fire.
In the 18 hours since we posted the article, seven comments have been left by our readers, including two from the Weaver’s attorney, Quentin Rhoades. Mr. Rhoades is not your typical barrister. He worked as a wildland firefighter for eight seasons between 1987 and 1994, serving on the Helena Hotshot crew and later as a smokejumper at West Yellowstone and Missoula. He told Wildfire Today that he was in the first planeload of jumpers on the South Canyon fire in Colorado in 1994, the fatal fire on which 14 wildland firefighters were entrapped and killed.
The Ryan Gulch fire was managed by a Type 1 Interagency Incident Management Team from the southeast, the “Red Team”, with Mike Melton as Incident Commander working under a delegation of authority from the state of Montana.
The list of witnesses for the State of Montana included:
George Custer, the Type 1 Operations Section Chief on the fire, who recently retired as the Incident Commander of a National Incident Management Organization (NIMO) Team. (As this is written on April 21, 2012, Mr. Custer is still listed on the NIMO web site as the IC of the Atlanta NIMO team.
Three firefighters who work for the Montana Department of Natural Resources and Conservation — two initial attack firefighters, Mark Nenke and Todd Klemann, and Jonathan Hansen, who according to Mr. Rhoades “was in charge of the Red Team for the State”.
Stephen Weaver (no relation to the Plaintiffs), the Planning Operations Section Chief for the Red Team on the fire. Mr. Weaver has been working for the U.S. Forest Service for 38 years.
Ron Smith, who was a Division Supervisor for the Red Team, presently working as a USFS District Ranger in Mississippi.
Shelly Crook, retired from the USFS, served as the State’s expert witness as a Fire Behavior Analyst
Chuck Stanich, retired from the USFS, was the State’s Type 1 Incident Commander expert. He is a former Fire Management Officer for the Lolo National Forest and Type 1 Incident Commander.
Red Team members who worked on the fire but did not testify included the Incident Commander Mike Melton, retired from the USFS; Tony Wilder, the Night Operations Section Chief; and Keith Wooster, the Fire Behavior Analysist, now retired from the USFS.
The Plaintiffs called one expert witness, Dick Mangan, who retired from the U.S. Forest Service Technology & Development Center in Missoula, Montana in 2000 with more than 30 years of wildfire experience. He is a past president of the International Association of Wildland Fire and currently works as a consultant in wildland fire, instructs fire courses, and raises black angus cattle in Montana.
Mr. Rhoades told us that local firefighting resources from the area staffed some divisions on the fire, and they employed direct tactics, not burning out or backfiring, and never used a drip torch or a fusee for igniting vegetation. He said they offered their local expertise to the Red Team but it was refused. Instead, the Red Team “planned and used all kinds of firing operations from day one”.
According to Mr. Rhoades, the firing operations were approved by the Incident Commander and were planned by the Day and Night Operations Section Chiefs, and the Planning Operations Section Chief, who consulted the fire behavior forecasts prepared by the Fire Behavior Analyst. However, no records could be found in the incident files that any backfires were ever lit or that there were any written planning or oversight documents related to backfires. While 272 pages of Unit Logs were found in the incident records, none of them were completed by Division Supervisors. George Custer, one of the Operations Section Chiefs on the fire, testified that Unit Logs were not necessary for Division Supervisors, but the 1998 Fireline Handbook uses the word “must” when talking about Division Supervisors completing Unit Logs. Members of the Red Team said the Fireline Handbook was “not authoritative”.
Mr. Rhoades got Chuck Stanich, a witness from the State, to admit under cross-examination that from studying the documentation, it was clear that no backfires were ever lit. Mr. Stanich and Mr. Mangan both held the opinion that if backfires were ever lit, they were done without adequate planning, documentation, and oversight. But locals, as well as George Custer, the Operations Section Chief who planned the backfires, testified that backfires were used on the fire. Apparently, the jury was convinced that backfires were used on the fire, but since there were no written records of planning or approval of them in the incident files, then they must have been conducted without adequate planning and oversight.
The jury also heard testimony about two near misses on the fire which were not documented or investigated. One involved two volunteer firefighters, and the other involved a Division Supervisor and two dozer operators. Regarding the second incident, Mr. Rhoades wrote in a comment on Wildfire Today April 20:
I stood on the spot, on the ridgetop, with one of those who nearly died. We could see right down to the Clark Fork from where they were about to be burned over. They would have all three died if a Type 1 helicopter had not been already operating within a mile of the blow-up. It dropped load after 2000-gallon load from the river right on top on them or they’d be dead, as they hurried their dozers down 40 and 50% slopes. Not to mention the 9,000 extra acres of land that burned.
These incidents may have helped to create in the minds of the locals serving on the jury that the Incident Management Team from the southeastern United States, where fires burn differently than in the west, was out of their element in Montana.
It may also be difficult to convince a jury pulled in off the street that setting fire to more vegetation can be a successful strategy of wildfire suppression, especially if local volunteer firefighters say they did not use that technique. There could also be an us-versus-them attitude, with rural Montana residents failing to see the benefit of the Federal Government’s fancy-dancy team from the other side of the country coming into their area and doing their own thing without adequately respecting ranchers and the expertise of local firefighters.
What can firefighters and Incident Management Teams learn from this?
First, do all the damn paperwork that’s required, especially Unit Logs. It’s not the most fun part of the job, but grow up. You can’t ignore this. Some teams attach a blank Unit Log form to every Incident Action Plan.
Document all major decisions, especially those that could be controversial.
*Conduct outreach with locals, have town meetings, personally interface with landowners that are directly affected by the fire, use web sites and social media, including but not limited to InciWeb and Twitter, updating them many times a day. Provide updated maps once or twice a day.
Talk with local firefighters. Become informed about local weather and fuel conditions, as well as local firefighting tactics that have been successful in the past.
Ensure that the final incident paperwork package is complete.
Follow-up on near misses. Document and investigate as necessary and required.
If the Fireline Handbook, Red Book, or other manual says something must be done, don’t interpret that as a tip, hint, or suggestion.
*Over the last few years, especially in 2011 in the Southwest, I observed that some Type 1 IMTeams really suck at stakeholder outreach and keeping the public informed. During the fatal Lower North Fork fire near Denver in March the Jefferson County Sheriff’s office did a wonderful job before the Type 1 IMTeam assumed command of the fire. They updated their web site numerous times a day, briefed the media on a regular schedule, held briefings for local residents after the media briefings, and used Twitter, providing a great deal of information to their community of very concerned citizens. They did not use InciWeb, but plenty of information was available on their own web site. Organized IMTeams could learn a lot about public information from the Jefferson County Sheriff’s office.
UPDATE April 23, 2012:
The Ryan Gulch fire was 30 miles west of Missoula and 8 miles east of Drummond, Montana. The trial was held in Philipsburg, MT (map), a town with a population of 930 in 2009.
A Montana rancher who said firefighters’ backfires ruined his ranch won a suit against the state of Montana on Wednesday. A jury awarded Fred and Joan Weaver $730,000 in a trial over the strategy and tactics that were used on the Ryan Gulch fire in 2000 — $150,000 was for the loss of timber, $200,000 for rehabilitation of pasture land, and the balance was for the mental suffering and anguish of seeing their ranch threatened by the fire. About 900 acres of the Weaver’s land burned during the fire.
Here are some excerpts from an article in the Missoulian:
…“I hope it will make the state think twice about these operations,” attorney Quentin Rhoades said after the Granite County jury delivered its verdict on Wednesday. Rhoades represented Fred and Joan Weaver and their daughter, Vickie Weaver.
Although the state was the defendant, much of the fire crew came from Florida and elsewhere in the Southeast under a federal interagency management team. Rhoades said the evidence indicated the crew appeared unaccustomed to working in windy mountainous terrain.
Witnesses at the scene reported firefighters setting “backfires,” where one blaze is used to divert or control another. They are different from “burnouts,” where firefighters ignite the green foliage between their defensive fire line and the flame front to deprive a forest fire of fuel.
“The state said we saved structures, the power line, the highway and the railroad with backfires,” Rhoades said. “Our argument was it would have been a lot easier to save that stuff if you hadn’t gone around lighting fires everywhere. They said they had plans to light fires eight or nine days in row, but that was the documentation that was missing. The jurors found that particularly troubling.”
“I believe this outcome is unprecedented in Montana history,” Rhoades said. “I don’t think there’s been a verdict against the state for negligent forest firefighting. There haven’t been many verdicts on that anywhere.”
This could be worrisome for wildland firefighters, if they have to be thinking that a jury of people off the street may second-guess their tactics in a trial 12 years down the road. It makes a person wonder to what extent these jurors were educated during the trial about wildland fire behavior, the advantages and disadvantages of employing different tactics, and the reality of fighting fire during a major fire bust when firefighting resources are spread very thin, as they were in 2000 when this fire was burning.
The way the Missoulian article is written seems to imply that the difference between a backfire and burn out is significant. It may or may not have made a difference in the trial, but the definition of a backfire in the article does not agree with that listed in the National Wildfire Coordinating Group’s Glossary of Wildland Fire Terminology.
“Backfire: A fire set along the inner edge of a fireline to consume the fuel in the path of a wildfire or change the direction of force of the fire’s convection column.”
“Burning out: Setting fire inside a control line to consume fuel located between the edge of the fire and the control line.”